The Inefficiency of International Justice by Michelle Kwon

Before Raphael Lemkin coined the phrase “genocide,” Winston Churchill referred to the mass atrocities witnessed during World War II, specifically orchestrated and carried out by Nazi Germany, as “a crime without a name.” In response to the acts of genocide the world witnessed during the 1940s, the Allies joined together to prosecute the perpetrators responsible for the systematic killing of millions, and, thus, the international community embarked on a bold and novel legal experiment. The International Military Tribunal held at Nuremberg and the International Military Tribunal for the Far East were the first courts to invoke international jurisdiction; prior to the London Charter and the Nuremberg principles, there was no such thing as international criminal law. Nobody had ever been tried for war crimes or genocide. These tribunals were novel and though they took place after the fact, they provided a measure of justice for the millions that were killed and tortured. The first and most famous session of the Nuremberg trials tried twenty-two defendants, seven were sentenced to life in prison and twelve were sentenced to death.

In Asia, World War II ended with Japanese surrender in August of 1945. The Nuremberg trials began in November of 1945, and the Tokyo tribunals quickly followed in April of 1946. These initial military tribunals commenced swiftly after the end of the war. Though there was no precedent guiding the Allies to a successful conclusion of these trials, they were effective, comprehensive, and immediate. What we have seen since then has been quite the opposite.

Since the 1950s, ad-hoc international tribunals and special courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (ICTY and ICTR), have been created to ensure that these crimes against humanity would never happen again and that the perpetrators would face justice. These tribunals were set up both to effectively deter further atrocities and establish the principle of international justice. But to this day, war crimes still occur, and sixty seven years after the Holocaust, genocides continue to occur. So in this light, what do these international trial proceedings provide?

Obviously, international criminal tribunals and special courts identify those individuals most responsible for catalyzing and carrying out war crimes and genocide, but they do not effectively do much else. The ongoing trials for individuals such as Nuon Chea and Ratko Mladic, which both began in 2011, display the inefficiency many associate with international law. The two men played central roles in the genocides that took place in Cambodia in the 1970’s and in Yugoslavia in the 1990’s, respectively. Yet, their trials have both moved slowly.  The deterrent capacity of the court seems further undermined by those individuals that categorically refuse to acknowledge the legitimacy of an international legal body – Slobodan Milosevic and Omar al-Bashir for example –negating any sort of clout the possibility of an indictment may hold.

Though these concerns are legitimate, many of these individuals are eventually extradited, tried, and found guilty. However, while these trials identify those most responsible for executing crimes against humanity and war crimes, there is no sort of rehabilitation provided for the countries that suffered, and continue to suffer, from the events that transpired.

Unlike the Nuremberg trials, individuals that are dealt a guilty verdict do not face the possibility of death. They are instead given a life sentence in prison – a verdict that some of their country’s nationals criticize for being disproportionately lenient given the atrocities that these former heads of states and officials perpetrated. Is the possibility of life in jail enough deterrence for war crimes and future genocide? Do these special courts and ad-hoc tribunals reward victims and victims’ families with the justice they deserve?

On 26 April 2012 the Special Court of Sierra Leone (currently conducting its trial at The Hague) will announce its verdict for the former Liberian President and warlord Charles Taylor. If Mr. Taylor is convicted on the 11 accounts he was indicted for, he will be the first African head of state to be convicted, albeit nine years after he resigned from the presidency. This case holds the potential for setting a monumental precedent, signaling to the world that not even heads of state are immune and cannot hide behind the veil of sovereignty. Yet, Mr. Taylor’s own son was sentenced to 97 years in jail in 2008, two years before the trial even began. Given this discrepancy, one can only hope that trials conducted by international tribunals and special courts will make every effort to punish those responsible for violating international law with the utmost expediency. If they fail to do so, the international community will be faced with the task of developing a new international legal structure, which can restore faith in the principles established at Nuremberg.

Michelle Kwon is an Editorial Assistant for the Law & Ethics section of the Georgetown Journal and a junior in the College majoring in Government.